Plaintiff
is an inmate confined in the Florida penal system. He is
proceeding pro se on an Amended Complaint (Amended Complaint)
(Doc. 11) pursuant to 42 U.S.C. § 1983.[1] He filed his
original Complaint (Doc. 1) on December 8, 2014, pursuant to
the mailbox rule. This cause is before the Court on Defendant
Espino and Whitehead's Motion for Summary Judgment
(Motion) (Doc. 102).[2]Plaintiff responded. Plaintiff's
Response to Defendants' Motion for Summary Judgment
(Response) (Doc. 111). See Order (Doc. 12); Notice
(Doc. 103). The Court granted Defendants' motion for
leave to file a reply, and Defendants' filed a Reply to
Plaintiff's Opposition to Defendants' Motion for
Summary Judgment (Reply) (Doc. 116). Plaintiff's filed a
response to the Reply, entitled Objections to Defendants'
Reply (Doc. 117).

The
alleged facts supporting the Amended Complaint are set forth
at pages 8-9. Plaintiff claims Defendant Espino was
deliberately indifferent to Plaintiff's serious medical
needs, in violation of Plaintiff's Eighth Amendment
rights. Amended Complaint at 7. Plaintiff states that after
he was sexually and physically battered on August 5, 2012, he
went to medical and saw Dr. Espino. Id. at 8.
Plaintiff alleges that Espino laughed at him; told him to get
out of his office; refused to examine him, even though he
knew Plaintiff had injuries; and refused to address
Plaintiff's injuries. Id. Plaintiff raises an
additional Eighth Amendment claim against Defendant
Whitehead. Plaintiff alleges that Whitehead told his
subordinates to beat inmates, use excessive force, and to
treat inmates cruelly. Id. at 8. Plaintiff also
alleges that Defendant Whitehead knew that his subordinates
were using excessive force. Id.

IV.
Exhaustion of Administrative Remedies

Defendant
Espino asserts that Plaintiff failed to properly avail
himself of the grievance process with regard to his claim
alleging deliberate indifference to a serious medical need.
The Prison Litigation Reform Act (PLRA) requires exhaustion
of available administrative remedies before a 42 U.S.C.
§ 1983 action with respect to prison conditions by a
prisoner may be initiated in this Court. Title 42 U.S.C.
§ 1997e(a) provides: "No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison or other correctional facility until such
administrative remedies as are available are exhausted."
Exhaustion of available administrative remedies is "a
precondition to an adjudication on the merits" and is
mandatory under the PLRA. Bryant v. Rich, 530 F.3d
1368, 1374 (11th Cir.), cert. denied, 129
S.Ct. 733 (2008); Jones v. Bock, 549 U.S. 199, 211
(2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006)
("Exhaustion is no longer left to the discretion of the
district court, but is mandatory.") (citation omitted).

Of
import, "failure to exhaust is an affirmative defense
under the PLRA[.]" Jones v. Bock, 549 U.S. at
216. However, "the PLRA exhaustion requirement is not
jurisdictional[.]" Woodford v. Ngo, 548 U.S. at
101. See Turner v. Burnside, 541 F.3d 1077, 1082
(11th Cir. 2008) (recognizing that the defense "is not a
jurisdictional matter"). Upon review of the Court's
docket, Defendant Espino filed a Motion to Dismiss (Doc. 59)
and an Answer[3] (Doc. 66) prior to the filing of the
Motion for Summary Judgment (Doc. 102).

This
Court has said, "[t]he defense of exhaustion is properly
raise[d] in a motion to dismiss as a 'matter of judicial
administration.'" Bentley v. White, No.
2:07-cv-573-FtM-29DNF, 2009 WL 248242, at * 3 (M.D. Fla. Jan.
30, 2009) (not reported in F.Supp.2d) (citation omitted). As
a result, the Court may look beyond the pleadings by the
parties to determine issues of fact with regard to the
exhaustion defense. See Bryant v. Rich, 530 F.3d at
1374-75 ("Because exhaustion of administrative remedies
is a matter in abatement and not generally an adjudication on
the merits, an exhaustion defense . . . is not ordinarily the
proper subject for a summary judgment; instead, it
'should be raised in a motion to dismiss, or be treated
as such if raised in a motion for summary
judgment.'") (footnote and citations omitted).

The
Eleventh Circuit addressed the matter of entertainment of an
unenumerated motion to dismiss under 12(b), Fed.R.Civ.P.,
based on failure to exhaust administrative remedies:

That motions to dismiss for failure to exhaust are not
expressly mentioned in Rule 12(b) is not unusual or
problematic. "'Federal courts . . . traditionally
have entertained certain pre-answer motions
that are not expressly provided for by the rules.'"
Ritza, 837 F.2d at 369 (quoting 5C Wright &
Miller, supra, § 1360 at 77). For instance,
courts may decide motions to dismiss that are
"'closely related to the management of the lawsuit
and might generally be characterized as involving matters of
judicial administration.'" Id.; see
e.g., Int'l Ass'n of Entrepreneurs of Am. v.
Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995)
("While pre-answer motions are
ostensibly enumerated in Fed.R.Civ.P. 12(b), district courts
have the discretion to recognize additional
pre-answer motions, including motions to
stay cases within federal jurisdiction when a parallel state
action is pending.").

More
recently, the Eleventh Circuit explained: "under Federal
Rule of Civil Procedure 12(g)(2), a defendant must raise the
exhaustion defense in his first Rule 12 motion, otherwise the
defense is forfeited and cannot be raised in a later motion
under Rule 12." Brooks v. Warden, No. 16-16853,
2017 WL 3669417, at *2 (11th Cir. Aug. 25, 2017) (footnote
omitted). Thus, Defendant Espino cannot raise this defense in
a second Rule 12 motion that he failed to raise in his first.
Although he entitled his current Motion a motion for summary
judgment, it is due to be treated as a motion to dismiss with
regard to his assertion that Plaintiff failed to exhaust
administrative remedies. Defendant Espino could have raised
the exhaustion requirement as a defense in his previous
motion, but he did not. Pursuant to Rule 12(g)(2), he is
prohibited from raising exhaustion at this juncture since he
failed to raise it in his first motion. Brooks, 2017
WL 3669417, at *4 (recognizing that the PLRA exhaustion
requirement is a non-jurisdictional claim-processing rule,
and is subject to forfeiture under Rule 12(g)(2)).

In
conclusion, the exhaustion requirement should have been
raised in Defendant Espino's Motion to Dismiss. This
untimely assertion of the exhaustion defense is barred under
Rule 12(g)(2); therefore, Defendant Espino's Motion, to
the extent it is based on the affirmative defense of failure
to exhaust administrative remedies, is due to be
DENIED.

V.
Dr. Espino

Plaintiff
contends that Defendant Espino was deliberately indifferent
to his serious medical needs. The requirements to establish
an Eighth Amendment claim with respect to medical care are:

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"A
serious medical need is &#39;one that has been diagnosed by a
physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity
for a doctor&#39;s attention.&#39; In the alternative, a
serious medical need is determined by whether a delay in
treating the need worsens the condition." Mann v.
Taser Inter., Inc., 588 F.3d 1291, 1307 (2009) (quoting
Hill v. Dekalf Reg'l Youth Det. ...

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